Judgment

THAKKAR, J. :- A decree for eviction was passed against the appellants, original defendants Nos. 1 and 2, in Ejectment Suit No. 1247 of 1964 by the City Civil Court at Calcutta. A Division Bench of the High Court of Calcutta has confirmed the decree passed by the trial court. A certificate of fitness having been granted by the High Court, under Art 133(1)(a) of the Constitution of India, the appellants are before this Court.

2. The decree for eviction has been passed on two grounds viz :

(i) that the premises were reasonably required by the plaintiff landlord for his own occupation under Section 13(i)(f) of the West Bengal Premises Tenancy Act of 1956 (hereinafter referred to as the Act) as it stood before it was amended by the West Bengal Premises Tenancy (Second Amendment) Act (referred to as Amending Act hereinafter) which came into force on November 14, 1969.

(ii) that the defendant No. 1 had sublet the premises to defendant No. 2 after the coming ,into force of the Act.

Requirement for own occupation :

3. In so far as the first ground of eviction is concerned the order passed by the City Civil Court as confirmed by the High Court cannot be sustained inasmuch as the suit for eviction on the ground of requirement for personal occupation was instituted by the plaintiff landlord within three years from the date of the acquisition of the property in question such institution being invalid by reason of the prohibition contained in Section 13(3A) of the Act which reads thus :

"Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest. ........"

4. The building in which the suit premises are situated was purchased by the respondent-landlord on March 13, 1963. The suit for eviction giving rise to the present appeal was instituted on June 23, 1964. Admittedly, the suit was instituted within the period of three years from the date of the purchase. Under the circumstances the suit was incompetent at the point of time when it was instituted. The decree for eviction on the ground of requirement for personal occupation could not therefore have been lawfully passed against the appellants. The appellants should have succeeded on this ground in the High Court itself but for the fact that the High Court was of the opinion that Section 13(3A) introduced by the second amending Act in 1969 to the extent that it was given retrospective effect was, ultra vires being violative of Art 19(1)(f) of the Constitution of India. In Banerjee v. Anita Pawar (1975) 2 SCR 774 this. Court has upheld the constitutionality of the said provision even in so far as its retrospective operation is concerned. The appeal must therefore succeed and the decree for eviction on this ground must be set aside. Of course, the respondent-plaintiff could have been permitted to file a fresh plaint claiming eviction under Section 13(1)(ff) of the amended Act and the matter could have been remanded to the trial court. But in the facts and circumstances of the case it would not be appropriate to adopt this course. Twenty years have passed by. The claim will have to be tested in the light of the situation as it exists now in 1984. It is therefore more appropriate to accord liberty to file a fresh suit on the ground that the premises are reasonably required by the landlady for her own occupation and that she is not in possession of any reasonably suitable accommodation as envisioned by Section 13(1)(ff) of the Act. It must be made clear that the question as regards the reasonableness of the requirement and the validity or otherwise of the claim on merits will have to be examined afresh in the light of the evidence that may be adduced at the trial in case the landlord files a fresh suit for eviction on